Making Motion Pictures, Television Productions, Soundtracks or Taking Still Photographs on Certain Areas Under the Jurisdiction of the Department of the Interior

The Department of the Interior (DOI) proposes to revise its filming regulations to implement legislation that directs establishment of reasonable fees for commercial filming activities or similar projects, such as still photography, and to respond to applicants for commercial filming or still photography permits in a timely manner.

Public Law 106-206 (codified at 16 U.S.C. 460l-6d) directs the Secretaries of the Interior and Agriculture to establish a reasonable fee system (location fees) for commercial filming and still photography activities on lands under the Secretaries' jurisdiction. The law necessitates that the Department of the Interior (DOI) revise the existing regulations at 43 CFR part 5 prohibiting the National Park Service and the Fish and Wildlife Service from collecting fees for commercial film productions. When finalized, this proposed regulation will be the primary regulation governing commercial filming and still photography activities for the following DOI agencies: The Bureau of Land Management (BLM), the U.S. Fish and Wildlife Service (FWS), and the National Park Service (NPS). While 16 U.S.C. 460l-6d authorizes agencies of the DOI to collect location fees, to date only the BLM, FWS, and NPS have decided to proceed with regulations allowing the agencies to collect and retain location fees. If in the future additional DOI agencies decide to collect location fees, then this regulation may be adopted by those agencies without significant modification.

Lands of the United States were set aside by Congress and Executive order or otherwise acquired to conserve and protect areas of untold beauty and grandeur, historical importance, and uniqueness for future generations. Often it is the uniqueness of the land that attracts filmmakers. This tradition started with explorers who traveled with paint and canvas or primitive photo apparatus before the areas were designated as a national park, refuge, or forest. Generally, land management agencies allow commercial filming and still photography when it is consistent with their mission and will not harm the resource or interfere with the visitor experience.

While many commercial filming and still photography permits issued by the land management agencies are for small productions involving educational material or commercial advertising, a significant number of commercial filming permits have been issued to makers of major motion pictures.

Public Law 106-206 augments previous statutes authorizing commercial filming and still photography permits and establishes limitations for filming activities. While commercial filming and still photography are activities generally allowed on Federal lands, in many circumstances it is in the Government's interest to manage the activity through a permitting process to minimize thepossibility of damage to the cultural or natural resources or interference with other visitors to the area.

This regulation standardizes the collection of location fees by DOI agencies. Currently, while NPS and FWS do not collect location fees for commercial filming or still photography, BLM collects and retains location fees for the use of their lands (43 CFR 2920.8). This proposed regulation allows DOI agencies to collect a location fee and to retain and use the money collected in accordance with the formula and purposes established for the Department's Recreational Fee Demonstration Program (Pub. L. 104-134). The formula currently provides that at least 80 percent of the fee collected remains in the unit where it was collected.

This regulation lays out the criteria for establishing location fees, including the number of people on site, duration (number of days) of the permitted activity, and amount and type of equipment present, as specified in statute. Actual fee amounts will be determined separately under a location fee schedule to be developed later by the DOI agencies covered by this regulation and the U.S. Forest Service (USFS). This schedule will be based on the current schedules used by BLM and USFS, public comments a draft location fee schedule previously proposed by NPS, and conversations with State and local film commissioners and industry representatives. Revised location fee schedules will be published in the Federal Register for public comment. Once we have analyzed comments on the revised location fee schedules, we will publish a notice of final location fee schedules in the Federal Register. These schedules will then be available for use by other DOI bureaus and Federal agencies, should they choose to do so. The schedules will be reevaluated periodically on a timetable to be set by the agencies using the schedule.

The expanded guidance provided in Public Law 106-206 is now proposed as subpart A of 43 CFR part 5, with the section governing areas administered by the Bureau of Indian Affairs, currently designated as § 5.2, now proposed as subpart B. The unnumbered paragraphs of § 5.2 have been numbered in the proposed subpart to allow for easier reference. In addition, a technical correction was made changing 25 CFR part 131 to 25 CFR part 162. We have also revised the NPS regulations in 36 CFR 5.5, and amended the current reference in the FWS regulations in Title 50 to conform to the proposed regulations in 43 CFR part 5.

Due to differences in regulations and policy, the three DOI land management agencies each have different approaches to managing commercial filming and still photography activities on their land. The types of commercial filming and still photography activities currently needing a permit vary from agency to agency, and only one DOI agency collects a location fee. The BLM currently charges a location fee for some commercial filming, but the NPS and FWS are currently prohibited by 43 CFR 5.1(b) from charging a location fee. The NPS and BLM recover the costs associated with issuing the permit from the permit holder. In addition, BLM state offices determine the location fee schedules for that State. This lack of consistency between the agencies creates confusion on the part of the filming and photography industry.

This proposed regulation defines commercial filming and still photography (Section 5.2) and explains which activities require a permit (Section 5.3), thereby ensuring consistency among DOI agencies. The proposed regulation identifies circumstances when an agency may not issue a permit, with six factors that agencies must take into account when evaluating an application for a permit (Section 5.4). This proposed regulation also allows each of the DOI agencies to impose reasonable permit conditions to mitigate the impact of the activity on the resource and visitor use and enjoyment (Section 5.5). A violation of a permit condition would allow the issuing agency to revoke the permit. This proposed regulation also explains the financial responsibilities of the permit holder, including payment of the location fee, reimbursement of any costs incurred by the agency due to the processing of the application and monitoring of the permitted activity, and the necessary liability insurance and surety bonds (Section 5.6).

This subpart contains the regulations for issuing permits for commercial filming and still photography in units of the NPS, FWS, and BLM in the DOI. It is possible that additional agencies of the DOI will adopt this regulation should the agency decide to collect location fees and cost recovery as authorized by Public Law 106-206. The only modification needed for additional agencies to adopt this regulation would be to modify the definition of “agency.”

This section provides the definitions needed to understand the regulation, including definitions for agency, commercial filming, cost recovery, location fee, and still photography.

Section 5.3When do I need a permit for commercial filming or still photography? ↑

Public Law 106-206 augments previous statutes for authorizing commercial filming and still photography activities and provides protections for the affected Federal lands. The law clarifies the requirements for commercial filming and still photography permits and establishes limitations for filming activities. While commercial filming and still photography are activities generally allowed on Federal lands, in many circumstances it is in the Government's interest to manage the activity through a permitting process to minimize the possibility of damage to the cultural or natural resources or interference with other visitors to the area. A person seeking a permit should contact the manager of the site for which the permit is sought to learn how and where to apply.

All commercial filming on lands under DOI jurisdiction requires a permit. This section details those instances and lists specific criteria that trigger the need for a still photography permit, such as the use of models, sets, or props or requesting access to an area to photograph which is, at that time, notopen to the general public. While filming and still photography activities by visitors (as opposed to commercial filmmakers or commercial photographers) generally do not require a permit, this section details those instances and lists specific criteria that trigger the need for a filming or still photography permit. These criteria include the use of models, sets, or props or requesting access to an area to film or photograph which is, at that time, not open to the general public. News coverage also does not need a permit, but is subject to time, place, and manner restriction, if warranted, to maintain order and ensure the safety of the public and the media, and protect natural and cultural resources.

Section 5.4Under what circumstances will an agency not issue a permit for commercial filming or still photography? ↑

The DOI agencies covered under this regulation will issue a permit, except when there is the likelihood that the activity will (1) Damage the resource, (2) cause unreasonable disruption or conflict with the public's use and enjoyment of the site, (3) pose public health or safety risks, (4) impair park resources or values, (5) be inappropriate or incompatible with the purpose of the refuge, or (6) violate other applicable laws or regulations. In some cases, a permit could be issued after terms and conditions are added to the permit to mitigate negative impacts.

One important aspect of a commercial filming or still photography permit is the inclusion of terms and conditions that will protect the natural and cultural resources, ensure that visitor use and enjoyment is not affected, and protect public health and safety. Permit terms and conditions will be included to mitigate any possible damage to the resources and to guarantee the restoration of Federal lands should that be necessary. The permit is a legal agreement between the Federal agency and the permit holder, who is legally bound to adhere to the terms and conditions of the permit. The permit may be revoked if the permit terms or conditions are violated.

The permit holder is required to acquire appropriate insurance, including property and personal and public liability insurance. Permit holders must fully indemnify and hold harmless the United States for any damage or injury incurred in connection with the permitted activity. Permit holders are also responsible for restoring and repairing the area used for the permitted activity and providing security in the form of a bond or other instrument that would guarantee restoration and repair.

Fees are divided into two categories: a fee for commercial filming activities, similar projects or still photography (location fee) and cost recovery. The location fee is basically rent; i.e., a payment for the use of the land. Cost recovery reimburses the agency for all costs incurred in the receiving of the application, processing the request, and monitoring the permitted activity.

The cost of location fees will depend upon the number of people on site, duration (number of days) of the permitted activity, and amount and type of equipment present, as specified in statute. Actual fee amounts will be determined separately under a location fee schedule to be developed later by the DOI agencies (and possibly USDA's Forest Service) covered by this regulation. This schedule will be based on schedules currently being used by BLM and the U.S. Forest Service and public comments previously received by NPS on a draft location fee schedule, On December 14, 2000 (65 FR 78186), the NPS published a “Notice of Availability of Draft Fee Schedules and Guidance for Commercial Filming in Compliance with Public Law 106-206 To Apply in All Units of the National Park Service.” We received 34 comments from the public as well as 9 comments from NPS personnel. Subsequently, additional conversations were held with managers of non-federally managed sites, both cultural and natural, as well as conversations with State and local film commissioners and industry representatives. Public Law 106-206 directed the agencies to recover any costs incurred by the agency as a result of the permitting of commercial filming or still photography activities, including, but not limited to, administrative and personnel costs. Recovery of costs is in addition to any location fees that might be charged. We will recover costs any time an application is submitted, and the amount should cover all costs of processing the request and monitoring the permitted activities. Cost recovery will be charged for processing a request even if the request is denied, since the agency incurred costs in processing the application and reaching a decision.

Under Public Law 106-206, Federal agencies are required to establish a process to ensure that permit applications are processed in a timely manner. Each DOI agency will develop a written checklist of the application and review process which will include a timeline to be followed by that agency. While processing times may vary significantly based on the complexity of the commercial filming or still photography request, a checklist will ensure that similar application and processing procedures are used throughout each agency on similar requests and that the application is efficiently processed to minimize the time it takes to consider a request. Early consultation with the appropriate agency on the part of a potential applicant will also aid in processing the application in a timely manner once it is submitted. The process used and the appropriate application forms will be available on request at all field offices and on the Internet.

This document is a significant rule and has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects of entitlements, grants,user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule is following the direction of Congress by implementing the provisions of Public Law 106-206. OMB has determined that this rule raises novel legal or policy issues. The rule proposes to institute a new schedule of fees for private industry for commercial filming and still photography activities that receive permits for the use of Federal lands managed by several DOI agencies. The potential number of areas and businesses affected by this proposed regulation could generate a number of comments.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). This certification is based on information contained in the report titled, “Benefit-Cost/Unfunded Mandates Act Analysis Small Business and Regulatory Flexibility Act Analysis” (U.S. Department of the Interior, Office of Policy Analysis, Office of the Secretary). This report is available from the NPS by writing to Lee Dickinson at the addresses listed in the section above under ADDRESSES.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the order.

This proposed regulation requires individuals and companies wishing to do commercial filming and still photography on public lands to obtain a permit from the agency managing the public land. The permit holder is also responsible for reimbursing the agency for costs incurred and to pay a land use fee. The mechanics of applying for the permit and the forms involved are not addressed in this proposed regulation, but are addressed in existing agency regulations and internal guidance. The NPS uses application forms NPS 10-931 (Film—Short Form) and NPS 10-932 (Film—Long Form). Both forms are assigned OMB Control Number 1024-0026 and expire March 31, 2010. The BLM uses OMB-approved BLM Form 2920-1 (Land Use Application and Permit), which is assigned OMB Control Number 1004-0009 and expires December 31, 2007. The FWS National Wildlife Refuge System currently uses two forms for special use permits on refuges: FWS Form 3-1383 (Special Use Permit Application on National Wildlife Refuges Outside Alaska), for which the OMB Control Number is 1018-0102 and the OMB approval expires January 31, 2008, and FWS Form 3-2001 (Special Use Permit Application on National Wildlife Refuges in Alaska), for which the OMB Control Number is 1018-0014 and the OMB approval expires September 30, 2006. Therefore, these regulations do not contain information collection requirements that the OMB must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501et seq.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment, health, and safety because it is not expected to:

(a) Increase public use to the extent of compromising the nature and character of the area or causing physical damage to it;

(b) Introduce non-compatible uses that might compromise the nature and characteristics of the area, or cause physical damage to it;

(c) Conflict with adjacent ownerships or land uses; or

(d) Cause a nuisance to adjacent owners or occupants.

Based on this determination, the regulation is categorically excluded from the procedural requirements of the National Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6, (49 FR 21438). Therefore, neither an environmental assessment nor an environmental impact statement has been prepared.

The location fee authorized by Public Law 106-206 and governed by this proposed regulation is a fee collected when a permit is issued by the responsible agency for a commercial filming or still photography activity. Any analysis required by the NEPA, as well as the National Historic Preservation Act, would be conducted in conjunction with the permitting process and would evaluate the impact of the requested activity on the resource.

In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249), the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22961), and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example § 14.10 Purpose). (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? What else could wedo to make the rule easier to understand?

Send a copy of any comments that concern how we could make this rule easier to understand to: Office of Regulatory Affairs, DOI, Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address:Exsec@ios.doi.gov.

Drafting Information: The primary authors of this regulation are Lee Dickinson, Special Park Uses Program Manager, Jerry Case, Regulations Program Manager, National Park Service, Washington DC; Vanessa Engle, Program Lead Commercial Filming and Still Photography, Bureau of Land Management, Washington DC; and Rebecca Halbe, National Fee Program Coordinator, U.S. Fish and Wildlife Service, Washington DC.

Our practice is to make comments, including names and addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials or organizations or businesses, available for public inspection in their entirety.

Subpart a—areas administered by the national park service, the u.s. fish and wildlife service, and the bureau of land management ↑

§ 5.1

This subpart covers commercial filming and still photography activities on the Federal lands and waters administered by the Bureau of Land Management, the National Park Service, and the U.S. Fish and Wildlife Service.

§ 5.2

The following definitions apply to this part:

Agency, we, our, or us means the Bureau of Land Management, the National Park Service, and the U.S. Fish and Wildlife Service office responsible for the administration of lands and waters that are under its respective jurisdiction. (This definition may be expanded as additional agencies in the DOI choose to collect location fees for commercial filming and still photography on the lands under their jurisdiction.)

Commercial filming means the digital or film recording of a visual image or sound recording by a person, business, or other entity for a market audience, such as for a documentary, television or feature film, advertisement, or similar project. It does not include news coverage or visitor use.

Cost recovery is the money that the agency collects as reimbursement for the costs incurred by the agency in accepting and processing an application and in monitoring the permitted commercial filming or still photography activity.

Location fee means a land or facility use fee similar to rent that provides a fair return to the United States for the use of Federal lands or facilities when used for commercial filming activities or similar projects and still photography activities where a permit is required.

Permit means a written authorization by us to engage in uses or activities that are otherwise prohibited or restricted.

Resource damage, as applied to BLM lands, means harm to the land or its resources that cannot reasonably be mitigated or reclaimed.

Still photography means the capturing of a still image on film or in a digital format.

§ 5.3

(a) All commercial filming requires a permit.

(b) Still photography requires a permit if:

(1) It takes place at location(s) where or when members of the public are generally not allowed; or

(2) It uses model(s), sets(s), or prop(s) that are not a part of the location's natural or cultural resources or administrative facilities; or

(3) The agency would incur additional administrative costs to monitor the activity; or

(4) The agency would need to provide management and oversight to:

(i) Avoid impairment or incompatible use of the resources and values of the site; or

(ii) Limit resource damage; or

(iii) Minimize health or safety risks to the visiting public.

(c) News coverage does not require a permit, but is subject to time, place, and manner restrictions, if warranted, to maintain order and ensure the safety of the public and the media, and protect natural and cultural resources.

(d) Use of film, video, or still photography equipment by visitors does not require a permit as long as the activity occurs in areas designated for public use during public hours.

(e) For information on how to obtain a permit application and where and how to submit it, contact the site manager for the location at which you seek a permit to film.

§ 5.4

(a) We will issue a permit authorizing commercial filming or still photography, EXCEPT if we determine that:

(1) There is the likelihood that resource damage would occur that cannot be mitigated or restored under the terms and conditions of a permit; or

(2) There is the likelihood of unreasonable disruption of or conflict with the public's use and enjoyment of the site; or

(3) There is the likelihood that the activity poses health or safety risks to the public; or

(4) There is the likelihood that the activity would result in the impairment of park resources or values;

(5) The activity is inappropriate or incompatible with the purpose of the refuge; or

(6) The requested activity will violate any other applicable Federal, State, or local law or regulation.

(1) Protect the site's values, purposes, and resources, and public health and safety; or

(2) Prevent unreasonable disruption of the public's use and enjoyment.

(b) We may revoke your permit if you violate a permit condition.

§ 5.6

(a) You are fully liable for any damage or injury incurred in connection with the activity, and you must fully indemnify and hold harmless the United States. You must obtain an appropriate property damage, personal injury, and public liability insurance policy sufficient to protect the United States Government from liability or other claims arising from activities under the permit. The insurance policy must name the United States as an additional insured.

(b) You are responsible for repair and restoration costs if your activity causes resource damage to an area. We may also require you to provide a bond or other security satisfactory to secure any other obligations you may have under the permit and applicable laws and regulations. The bond must be in an amount sufficient to provide full payment for the costs of restoration, reclamation, or rehabilitation of the lands in the event that your activity causes resource damage to an area. If the cost of the repairs exceeds the amount of your bond, you will also be responsible for the additional amount.

§ 5.7

(a)Location fee.(1) For commercial filming and still photography permits, we will require a reasonable location fee that provides a fair return to the United States. The location fee will be based upon the following criteria:

(i) The number of days your activity takes place;

(ii) The size of the film crew;

(iii) The amount and type of equipment present; and

(iv) Comparable location fees charged by other Federal, State, and local government agencies and the private sector.

(2) The location fee charged is in lieu of any entrance or other special use fees. However, the location fee is in addition to any cost recovery amount assessed in paragraph (b) of this section.

(3) We will assess location fees in accordance with a fee schedule, to be published in the Federal Register and made available on the Internet and at our field offices.

(b)Cost recovery. You must reimburse the agency for actual costs incurred in processing your request and administering your permit. Cost recovery will be based upon our direct and indirect expenses including, but not limited to, administrative and personnel costs for application processing, preproduction meetings and other activities, and on-site monitoring of permitted activities.

§ 5.8

The DOI is committed to ensuring that the agencies process permit applications for commercial filming and still photography permits in a timely manner. Each agency is responsible for developing its own system for administering the permit application process. For specific information on application procedures, contact the appropriate agency field office.

Anyone who desires to go on to the land of an Indian to make pictures, television productions, or soundtracks is expected to observe the ordinary courtesy of first obtaining permission from the person(s) and of observing any conditions attached to this permission.

§ 5.16

Anyone who desires to take pictures, including motion pictures, or to make a television production or a soundtrack of Indian communities, churches, kivas, plazas, or ceremonies performed in these places, must:

(a) Obtain prior permission from the proper officials of the place or community; and

(b) Scrupulously observe any limitations imposed by the officials who grant the permission.

§ 5.17

If filming pictures or making a television production or a soundtrack requires the actual use of Indian lands, you must obtain a lease or permit under 25 CFR part 162.

§ 5.18

Any motion picture or television producer who obtains a lease or permit for the use of Indian land under 25 CFR part 162 must pay a fair and reasonable wage to any Indian employed in connection with the production.

The filming of any motion picture or taking of sound recordings or still photography on a national wildlife refuge for subsequent commercial use is prohibited except as may be authorized under the provisions of 43 CFR part 5.